Opinion
61 CA 18–01381
02-08-2019
Diane M. FULLER, Plaintiff–Respondent, v. ARMOR VOLUNTEER FIRE CO., INC., Defendant–Appellant.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL), FOR DEFENDANT–APPELLANT. CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL), FOR DEFENDANT–APPELLANT.
CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she allegedly sustained when she slipped and fell on black ice in the rear parking lot of defendant's fire hall, where plaintiff and her husband intended to play bingo. In her amended complaint, as amplified by her bill of particulars, plaintiff asserted a single cause of action, for negligence, alleging that defendant had constructive notice of the icy condition and that the lighting in the rear parking lot was inadequate. Viewing the evidence in the light most favorable to plaintiff (see Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ), we conclude that Supreme Court properly denied defendant's motion for summary judgment dismissing the amended complaint.
Contrary to defendant's contention, it failed to meet its initial burden on the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). It is well established that, "[t]o constitute constructive notice, a defect [or dangerous condition] must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it" ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Here, defendant failed to establish that the ice was not visible upon a reasonable inspection (see Derosia v. Gasbarre & Szatkowski Assn., 66 A.D.3d 1423, 1424, 885 N.Y.S.2d 862 [4th Dept. 2009] ). In support of its motion, defendant submitted the deposition testimony of one of its members, who stated that he plowed much of the rear parking lot to "bare blacktop" two hours before plaintiff arrived. In addition, defendant submitted the deposition testimony of plaintiff and her husband, which established that the parking lot in the area of the fall was dark and that the lighting nearby was inadequate. Thus, by its own submissions, defendant raised an issue of fact "whether the ice was merely difficult to see because of the lighting conditions, ‘i.e., whether the condition was visible and apparent [upon a reasonable inspection] and had existed for a sufficient length of time before plaintiff's accident to permit defendant[ ] to discover and remedy it’ " ( id. at 1425, 885 N.Y.S.2d 862 ; see O'Bryan v. Tonawanda Hous. Auth., 140 A.D.3d 1702, 1703, 33 N.Y.S.3d 634 [4th Dept. 2016] ).